RE SAIDY LAMIN IA

HCAL 921/2017

[2021] HKCFI 1322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 921 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application dated 4 January 2021 to appeal my decision of 19 May 2020 refusing leave to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  He did not do so.  He now requires leave to extend time to appeal against that order.  The applicant attended the Court without the benefit of an interpreter as he speaks excellent English.

Procedural Background

2.  The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  He entered Hong Kong lawfully on 27 July 2014 but thereafter overstayed.  He surrendered to the Immigration Department on 27 October 2014.  He submitted a non-refoulement claim on 13 April 2017 and was interviewed by the Director of Immigration (“the Director”) on 17 May 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 25 May 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Susan Marie Pinto, heard his appeal on 19 September 2017 and refused it in a 21-page decision on 10 October 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  His application for leave to apply for judicial review was refused on 19 May 2020.  He had 14 days from that date to appeal that decision which would have expired on 2 June 2020.  By way of summons dated 4 January 2021, he seeks leave to appeal out of time.

4.  An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6).  The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  

6.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  The applicant accepted he was late and gave no reason within his Affidavit as to why that was the case other than to say that he did not receive the letter.  The Court file suggests that it was properly served upon the address given at that time and which he confirmed was the address at which he was living for the purposes of delivery of the letter.  However, the applicant maintained that it was the type of address which did not have a letter box and did not lend itself to the delivery of mail.  He had provided no other address to which any correspondence could be sent.  He has since moved address and can receive correspondence.  As a result, the applicant maintains that he only learnt of the refusal of leave in January 2021, which I have difficulty believing.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[2]. The consequences of any delay arising from failing to do so will fall upon the litigant[3].

7.  Even if the Court does accept that the explanation given for the delay is a reasonable one, the Court is required to examine whether there is any merit in the applicant’s appeal[4].  Whether there is any such merit will depend upon well-established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The procedure on judicial review was explained at length.  The applicant is the holder of a law degree and fully understood that the merits of his claim had been dealt with below and that judicial review was a quite separate form of action.  He submits that he should have been allowed to be heard upon the leave application and that the Form 86 does not provide for any place in which the applicant can indicate they wish to be heard in person.  The opportunity to ask for an oral hearing only appears within the notes for guidance and is not easily understood.  This point apart, the applicant had no grounds of appeal against this court.  The question for the court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

8.  The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies since that date.  The explanation he has offered to this court, as to why he did not receive the order is not acceptable.  Despite the fact that he is a lawyer and erudite, he wholly missed the opportunity to be heard because of the manner in which applicants are assisted with the Form 86.  I accept that he misread the contents.  There is an arguable injustice as to the manner in which applicants from foreign jurisdictions are informed of their right to an oral hearing and as such I will give leave to appeal.

9.  The applicant’s summons dated 4 January 2021 be allowed and I will grant the application extending the time for 14 days from this order for him to file the Notice of Appeal.